Bradley and another v Heslin and another

Easement – Right of way – Driveway – Claimants and defendants being neighbours — Dispute arising between claimant and defendant neighbours concerning gates over driveway – Claimants claiming right to open and close gates – Defendants arguing opening and closing of gates interfering with right of way – Whether right to occupy airspace by hanging gate over driveway constituting easement – Whether legal easement to close gates connected with enjoyment of land – Whether right of way being acquired by prescription – Claim allowed in part The claimants and the defendants owned neighbouring properties in a quiet residential road. The claimants had a right of way over the defendant’s land across which was a pair of gates. The claimant wished to close the gates for security purposes but the defendants wanted it open so that they could drive through it without having to get out of their car. Therefore, the defendants padlocked the gate open. Following a burglary at the claimant’s property, the police advised the claimant to keep the gates closed and a dispute arose between the parties. The claimants contended that the southern pillar at the driveway entrance had been built on land forming part of their property and they claimed legal rights to ownership of the northern most pillar and gates, and to close the gates, by way of proprietary estoppel or, alternatively, by adverse possession of the pillar, and upon prescription or lost modern grant in respect of the right to close the gates. There was evidence that the claimants had maintained the pillars and painted the gates, in 1992, 1998 and 2004. The defendants denied that the claimants had any right to close the gates at all on the basis that they were purely ornamental, had never been closed on any regular basis and had never been closed at all until July 2012. They further claimed that both of the pillars that flanked the driveway belonged to their property, as did the gates themselves. The claimants applied to the court for a declaration that they had a right to maintain the gates and to open and close them at all times and for all purposes connected with the enjoyment of their property. The court was asked to determine who had title to the northern pillar; who owned the gates between the pillars; whether the defendants had been entitled to padlock the northern gate open; and whether the right to hang and close the gates was capable of being an easement. Held: The claim was allowed in part. (1) On the facts, the claimants had acquired title to the northern pillar by adverse possession by the beginning of 1992. Although properly proved agreements or understandings were favoured by the law, some caution had to be exercised. Simple acts of neighbourliness should not ripen into legal rights vested in the beneficiary of the actor’s kindness, or amount to an abandonment of some legal right already vested in the actor. Further, when looking at usage over a period of time one had to be clear whether that usage was being used as evidence of what must have been agreed or understood or as evidence of a modification of some established right, or as by itself establishing a right, by adverse possession or prescription or under a lost modern grant: Neilson v Poole (1969) 20 P & CR 909, Maggs v Marsh [2006] EWCA Civ 1058 and Ali v Lane [2006] EWCA Civ 1532; [2007] 1 EGLR 71 considered. (2) If the court was wrong about the extent of the registered title, the claimants owned the northern pillar as the result of the operation of a proprietary estoppel. Furthermore, the gates that hung between the pillars belonged to the claimants. Their predecessor had paid for them and they hung between pillars which belonged to them. Although there was no direct evidence of any specific agreement or understanding as to the ownership of the northern pillar and the gate hung from it, an estoppel could be founded upon a representation that was never expressly made but was a matter of implication and inference from indirect statements and conduct: Thorner v Major [2009] 2 EGLR 111 considered. (3) The right to occupy airspace by hanging a gate over the land forming a driveway was capable of being an easement that accommodated the dominant tenement. It did not amount to a claim to the whole beneficial use of the driveway, nor did it render the defendant’s ownership of the driveway illusory: Drewett v Towler (1832) 3 B & Ad 735 and Suffield v Brown (1864) 4 De GJ & Sm 185 considered. In the present case, if the claimants closed the gates, it would constitute a trespass over the defendants’ land, unless the claimants had a right to do so by way of an easement. A legal easement to close the gates at all times and for all purposes connected with the enjoyment of the claimant’s land had not been established by prescription or under the doctrine of lost modern grant. The claimants had to prove regular intermittent use of the gates and had not done so. However, that did not mean that any closing of the gates lacked legal foundation or that usage which was insufficient to establish a right might not evidence a right having some other origin. At the time the gates were erected they had been intended to be used and had, in fact, been used. They had been intended to be functional. In all the circumstances, the claimants had a right to close and open the gates for all purposes connected with the reasonable enjoyment of their property provided such use did not substantially interfere with the reasonable enjoyment of the defendant. The defendants had not been entitled to padlock the northern gate open but the claimants were not entitled to a declaration that they were entitled to an easement permitting the opening and closing of the gates at all times and for all purposes: Pettey v Parsons [1914] 2 Ch 662, White v Taylor (No 2) [1969] 1 Ch 160, Joyce v Rigolli [2004] EWCA Civ 79; [2004] PLSCS 35 and Oliver v Symons [2012] 2 EGLR 9 considered. Per curiam: It was no longer enough to leave the parties the opportunity to mediate and to warn of costs consequences if the opportunity was not taken. In boundary and neighbour disputes the opportunities were not being taken and the warnings were not being heeded, and those embroiled in them needed saving from themselves. Although the court could not oblige truly unwilling parties to submit their disputes to mediation, there was no reason why, in the notorious case of boundary and neighbour disputes, directing the parties to take (over a short defined period) all reasonable steps to resolve the dispute by mediation before preparing for a trial should be regarded as an unacceptable obstruction on the right of access to justice. Lawrence McDonald (instructed by Brabners LLP) appeared for the claimants. Christopher Jones (instructed by Portland Legal Services) appeared for the defendants. Eileen O’Grady, barrister   Click to read transcript: Bradley and another v Heslin and another